RE CHOWDHURY MD IMTIAZ AHMED

CACV 2/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 2 OF 2017

(ON APPEAL FROM HCAL NO 126 of 2016)

________________________

__________________________

________________

JUDGMENT

________________

Hon Lam VP (giving the Judgment of the Court):

1.  In this matter, the Applicant applied for leave to commence judicial review to challenge the decision of the Director of Immigration [“the Director”] refusing to grant his request for change of status from visitor to resident based on his marriage with a Hong Kong resident. The application was considered by Li J. On 20 December 2016, Li J refused to grant leave mainly on account of undue delay on the part of the Applicant in making the application.

2.  The relevant facts and chronology of the matter was set out by Li J in his reasons in the CALL-1 Form as follows:

“ Background

The applicant was born in Bangladesh on 15 November 1979. He came to Hong Kong on 3 November 2006. He was allowed to remain as a visitor for 2 days. He overstayed after that date.

In November 2007, the applicant was convicted of two offences: (1) ‘Possession for sale of goods bearing a forged trade mark’ and (2) ‘taking up illegal employment’. He was imprisoned for a total of 4 months.

After the applicant served his sentence, the Director of Immigration started deportation proceedings. The applicant objected. He then lodged his Torture Claim on 8 January 2008. A removal order was issued against him on 29 February 2008. He was granted recognizance on 24 April 2008 pending the result of the Torture Claim.

In August 2009, he was again convicted and sentenced to 4 months imprisonment for the offence of “Possession for sale goods bearing a forged trade mark”. After serving sentence, he was released on recognisance on 14 October 2009. His refugee claim was rejected in November 2009.

The applicant married the sponsor, Ms. Tam Yiu Mei, on 2 January 2011. No child was born in the wedlock. He applied for residence in HK as a dependent of his wife on 4 January 2011.

Application for Dependant Visa

The Director of Immigration (‘Director’) found that the matrimonial relationship appeared to be genuine. The sponsor was capable of supporting the applicant financially in Hong Kong. The Director however rejected the application for dependant visa in June 2011. The main reasons were that the applicant had criminal records. There was no overwhelming ground justifying exceptional consideration.

The applicant requested the Director to reconsider the decision on three occasions in July 2011, October 2011 and May 2012 respectively. The Director maintained the refusal.

  The applicant made representation to the Chief Secretary for Administration in June 2012 in relation to the Director’s decision.  It was finally rejected by the Chief Executive in Council in September 2013.”

3.  The learned judge also gave the following reasons, set out in the CALL-1 Form, for holding that there was no merit in the intended application:

“ Criminal record

(a) The applicant argued that the rejection of the dependency visa should not solely base on his criminal records.

(b) In CACV 9, 103 & 134/2015, the Court of Appeal reiterated that the starting point must be the overall highly restrictive immigration control policy due to the geographical, social and economic imperatives faced by Hong Kong. The Dependency Visa Policy must be consistent with the context and purposes of strict immigration control.

(c) The Court of Appeal held that a clear record should be a necessary eligibility criterion.

(d) The Director cannot be criticized. This ground is not reasonably arguable.

Humanitarian consideration

(a) The applicant argued that he and his wife were suffering from this misfortune. He pleaded for a humane approach from this court.

(b) Again in CACV 9, 103 & 134/2015, the Court of Appeal stressed that the Director of Immigration had always adopted very restrictive and stringent immigration policies and practices. The Dependant Visa Policy was not an open-ended family reunion policy.

(c) The Court of Appeal stressed that family connection was only relevant in considering whether a case of exceptional treatment had been made out and the weight attributable to such factor in any particular case must be a matter for the Director in light of the overall stringent policy of immigration control.

(d) There is no legal basis to say that the family tie or connection should be given higher priority over other considerations in the exercise of immigration control, a court could not infer that the Director did not take family tie or connection into account simply because a decision was adverse to such consideration.

(e) Where the Director has taken into consideration humanitarian grounds, this court would only interfere if the decision of the Director is unreasonable.

(f) In my view, there are so many social, economic and security factors which are exclusively the expertise of the Director. The weight to be attached to each of these factors is a matter for the Director. This court is slow to interfere.

(g)  Given the reasons above, I reject this ground.”

4.  The Applicant appealed against the decision of Li J.  This is our judgment in the appeal.

5.  The relevant legal principles regarding the administration of the dependant visa policy were set out in the recent decision of this court (another division) in BI v Director of Immigration [2016] 2 HKLRD 520 which is the Court of Appeal decision referred to by the judge as CACV 9, 103 & 134 of 2015.  The following propositions are relevant in the present context:

(a) Hong Kong has to maintain a restrictive and stringent immigration policy;

(b) The making of immigration policy and the administration of such policy is in the hands of the Government and the Director of Immigration, not the court;

(c) The Director has a wide discretion in immigration matters;

(d) It is not appropriate for the court to usurp the role of the Director as the court is not equipped with the necessary knowledge and expertise to carry out the responsibility of the Director;

(e) The court will only intervene in respect of the decision of the Director if the Director acted against the principle of legality, the principle of fairness or the principle of rationality in the administration of his immigration policy; and

(f) The Dependant Visa policy is one of the several exceptional schemes under which the Director could allow a limited number of persons in different categories to immigrate to Hong Kong.  The other schemes are Employment as Professionals or Entry for Investment under the General Employment Policy, Immigration Arrangements for Non-local Graduates, Employment under the Admission Scheme for Mainland Talents and Professionals, Capital Investment Entrant Scheme and Quality Migrant Admission Scheme.

6.  The Court of Appeal construed the Dependant Visa Policy (which the Applicant in the present case also relied upon) at Section F of the judgment.  In particular, the Court held that an applicant must satisfy the No Record Requirement in the Policy before he is eligible to apply.

7.  In light of that Li J was plainly correct in holding that there is no merit in the Applicant’s intended challenge based on the complaint that the Director did not regard him as eligible in light of his criminal records.

8.  In respect of family ties and humanitarian considerations, the Court of Appeal in BI, supra said at para 92[8]:

“ (8) When an applicant cannot bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian considerations. However, the Director is not obliged to take humanitarian considerations into account though he may do so. If he did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider: Lau Kong Yung v Director of Immigration. In the discussions below, we shall further address the scope of judicial review if the Director did consider humanitarian grounds.”

9.  Further at para 108:

“ 108. In light of the Appeal Committee's decision in Aguilar Elmedorial v Director of Immigration, we would not rule out completely the possibility of mounting a judicial review based on irrationality (or Wednesbury unreasonableness). However the courts must have regard to the wide discretion of the Director in assessing the merits of such a challenge and humanitarian consideration is only relevant in the context of whether an applicant merits exceptional treatment against a policy of stringent immigration control.”

10.  This must be read in light of what had been said in the preceding paragraphs, viz paragraphs 105 to 107:

“ 105.  It had been explained in the long line of cases approved by the Court of Appeal in Safder Tehseen v Permanent Secretary of Security that the courts are not equipped to exercise immigration control in place of the Director.  This court should take this opportunity to reiterate categorically and firmly that as a matter of Hong Kong law the weight to be attached to a particular humanitarian consideration in a particular case at a particular point in time is a matter for the Director.

106.  Arguments in courts in cases of this nature usually concentrated on the personal and family situations of the applicants.  However, in terms of immigration control, there are many socio-economic as well as security factors which the courts cannot even begin to grapple.  It would also involve consideration of the long term population strategy for Hong Kong.  On the facts of a particular case, it can be tempting for a judge to find the personal or family situation of an applicant deserving of sympathy and conclude that the application should be accorded with exceptional treatment.  A judge succumbing to such temptation would, in effect, usurp the role of the Director in the administration of immigration control and inevitably make a decision at the risk of placing priority on the personal and family situation of an applicant over other highly relevant factors with which the court is not familiar and not in a position to assess properly.  As such, it is against proposition (2) set out in [92] above.  

107.  In our judgment, the court should acknowledge that immigration control involves decisions of high political as well as socio-economic contents which should be accorded with a broad margin of discretion in accordance with well established principles of judicial review.  In R v Immigration Appeal Tribunal ex parte Singh, Lord Bridge also accepted this proposition.”

11.  Li J correctly applied the law in his assessment of the merit of the Applicant’s intended challenge based on humanitarian considerations.

12.  In any event, it is clear from the correspondence and internal minutes that the Director had examined the matter from the humanitarian angle and come to the view there was insufficient ground for giving the Applicant any exceptional treatment.  In an internal minutes of 26 April 2012 in the Applicant’s file, the following was said:

“ Recommendation

13. Having considered all circumstances of the case, it is believed that the sponsor is financially capable and their matrimonial relationship is genuine.  However, the criminal conviction records of AP are serious in terms of the nature, gravity and sentence imposed and there being no overwhelming factors or other justifiable grounds to support our exceptional consideration for a departure from the existing dependant policy.  The previous refusal decision is considered justified and our refusal decision is recommended to be maintained.  Draft refusal letter is prepared at float.  As AP is currently released on recognizance, CLS and TCA would be informed of our decision by memo for their follow-up actions.”

13.  We do not see any basis to support the Applicant’s contention that the Director’s decision was Wednesbury unreasonable.

14.  On undue delay, Li J said this:

“ Delay

Application for leave for judicial review must be made promptly and in any event within 3 months from the date when the ground for the application first arose. There must be good reasons before an extension of time would be granted.

Where there is undue delay, a court may refuse leave or the relief where it would be likely to cause hardship or prejudice or detrimental to good administration within s.21K (6) of the High Court Ordinance.

The Director refused the application for dependency visa in June 2011. The applicant sought reconsideration three times on similar grounds. It was finally rejected by the Director in May 2012. The applicant then petitioned the Chief Executive. It was finally refused on 19 September 2013. Even assuming that the time for judicial review ran from 19 September 2013, the applicant should have filed his leave application latest by 19 December 2013. He was more than two and a half years late in making the leave application (19 December 2013 to 11 July 2016). It is an undue delay.

  In the documents submitted by the applicant, there was no explanation of this delay.  He only repeated the grounds relied on in the previous applications.  In my view, there is no good reason for extending the time for leave application. It is detrimental to good administration to allow extension.  I would have refused leave on this ground alone.”

15.  The judge was plainly right.  Because the application for leave was brought outside the 3-month period, the Applicant has to show good reason to extend time, see Order 53 Rule 4(1).  The Applicant failed to provide any satisfactory explanation for the delay.  In such circumstances the court should not entertain his application, see AW v Director of Immigration [2016] 2 HKC 393.

16.  In the documents submitted by the applicant, there was no explanation of this delay.  He only repeated the grounds relied on in the previous applications.  In our view, there is no good reason for extending the time for leave application.  It is detrimental to good administration to allow extension.  We would have refused leave on this ground alone.    

17.  Li J was correct in refusing leave and we have no ground to disturb his decision.

18.  For these reasons, we dismiss the appeal.